In a recent example of his unlabeled editorials,((Government corruption getting a free ride from U.S. Supreme Court, N.J. attorney general says, published as a “Subscriber Exclusive” on NJ.com on December 10, 2022, and in the Star-Ledger on December 11, 2022.)) Star-Ledger Washington correspondent Jonathan Salant covered a speech by New Jersey attorney general Matthew Platkin complaining that the U.S. Supreme Court has made it harder to bring federal charges against public officials. The editorial (um, article), citing three examples, one each from 2016, 2018, and 2020, says: “Federal courts have not been kind to federal efforts to prosecute state and local officials on corruption charges.”((I seem to remember that as U.S. attorney former Governor Chris Christie’s record on corruption prosecutions was 132 convictions, 0 acquittals.))
The first example was the Supreme Court’s unanimous ruling in McDonnell v. United States, 579 U.S. ___ (2016), which reined in an over-expansive reading of “official act” which the prosecution would have extended to merely setting up a meeting, calling another public official, or hosting an event. Based upon the statutory text, the Court ruled:
In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”
Because the jury instructions permitted a guilty verdict based upon the former Virginia governor’s “merely setting up a meeting, calling another public official, or hosting an event” the conviction was reversed, and the district court ultimately dismissed the case on the Government’s motion.
The second example was the dismissal (the article incorrectly indicates that this was an acquittal) of some of the charges against Senator Robert Menendez.
The third example was the Supreme court’s (again unanimous) reversal of the Bridgegate convictions in Kelly v. United States, 590 U.S. ___ (2020), which ruled that the defendants could not have committed the fraud as charged because they did not obtain money or property.
True, the Supreme Court cases did make it harder to convict officials on federal charges, but that is because the laws at issue were not written to cover the conduct alleged. The Government has still been able to prosecute numerous officials successfully. If federal anti-corruption laws should cover additional conduct, they should be re-written to do so explicitly. (After all, a person must have fair notice that conduct is criminal before being prosecuted for it; if the statute could be read either way, to use the baseball adage, “the tie goes to the runner.”)
Platkin is quoted as saying that state attorneys general “really are the last bastion of defense against what I consider to be a pretty pervasive problem.” Maybe that’s as it should be. Why it should be solely (or even primarily) a federal responsibility to prosecute corrupt state or local officials?